Thesis submitted in completion of my LLB in Makerere University

1. REGULATION OF EQUITY
MARKETS IN UGANDA:
THE ROLE OF THE CAPITAL MARKETS
AUTHORITY IN INVESTOR PROTECTION.
A Dissertation in Partial Fulfilment of a Bachelor of Laws
(LLB) Degree
NAME: RWAKAKOOKO ALLAN FRANKLIN
REGISTRATION
97/U/4544/Eve
NUMBER:
COURSE: LLB IV
YEAR OF STUDY: FOURTH YEAR 2000/2001
SUPERVISOR: MR. KAGGWA
FACULTY OF LAW
MAKERERE UNIVERSITY, KAMPALA
June 2001

2. DEDICATION
This dissertation is dedicated to my parents, Mr. and Mrs.
Rwakakooko.
2

3. DECLARATION
I, Rwakakooko Allan Franklin declare that, to the best of my
knowledge, this thesis is authentic except where due
acknowledgement is made in the text. It does not include any
material for which any other university degree or diploma has been
awarded.
SIGNED: ………………………………………………………
RWAKAKOOKO ALLAN FRANKLIN
DATE: …………………………
SUPERVISOR: ………………………………………………
MR. MOSES KAGGWA
DATE: …………………………
3

4. ACKNOWLEDGEMENTS
I would first like to thank God without whom nothing is possible.
I would also like to extend my gratitude to a number of people whose help was very
valuable in this research.
I would like to thank my Supervisor, Mr. Moses Kaggwa for his meaningful assistance,
tireless guidance and patience.
I would also like to thank Mr. Swithin Munyantwali, Executive Director, International
Law Institute, Mr. Japheth Katto, Chief Executive Officer Capital Markets Authority, Mr.
Simon Rutega, Chief Executive Officer Uganda Securities Exchange, Ms. Christabel
Nankunda and Mr. Charles Mebeiha of Capital Markets Authority and Mr. Paul Mugaga
for their time and valuable information.
I would also like to thank my parents, Mr. E. K. Rwakakooko and Mrs. J. Rwakakooko,
my sisters, Judith, Jocelyn, Julianne, Elizabeth, Siima and brothers Davy, Enock and
“Denace” for their moral and material assistance. Special mention goes to Jeanne whose
literature, advice and encouragement has been priceless.
I would like to acknowledge my friends Eugene Karuhanga, Dunstan Kiwanuka, Abdul
Sami Eria, Harriet B. Magala, Florida Kabasinga, Bella Nyamutoka and Frank Ddamulira
whose interest in my research was very beneficial.
4

5. CONTENTS:
Lists of Statutes and Regulations
List of Cases
Acronyms
Abstract
Chapter One: History and Evolution of the Global Concept of
Investor Protection in Equity Markets:
General Background Information
Statement of the Problem
Hypothesis
Objectives of the Study
Significance of the Study
Justification for the Study
Methodology
Literature Review
Scope of the Study
Definition of Some Concepts
Synopsis of the Study
Chapter Two: The Initial Public Offering (IPO): The Capital Markets
Authority’s Role in Regulating the Primary Market
Chapter Three: Post-IPO: Substantive and Regulatory Aspects of
the Secondary Market
Chapter Four: Constraints to Government Regulation: The Conflict
Between Laissiez Faire and Dirigisme and its effect on
Investor Protection:
Chapter Five: The Way Forward: Supporting Systems and
Recommendations for a Better Capital Markets Regime
Appendix A: The Regulatory Pyramid
Appendix B: The Legislative Pyramid
5

6. LISTS OF STATUTES AND REGULATIONS
1. Companies Act, 1964 Cap 85, Laws of Uganda
2. Capital Markets Authority Statute, 1996
3. The Capital Markets (Establishment of Stock Exchanges) Regulations
4. The Capital Markets (Licensing) Regulations
5. The Capital Markets (Prospectus Requirements) Regulations
6. The Capital Markets (Conduct of Business) Regulations
7. The Capital Markets (Advertisement) Regulations
8. The Capital Markets (Exempt Dealers) Regulations
9. The Capital Markets (Accounting and Financial Requirements) Regulations
10. The Capital Markets (Register of Interest in Securities) Regulations
11. Uganda Securities Exchange Listing Rules Manual
6

7. LIST OF CASES
1. Charles Hughes & Co., Inc. v. Securities And Exchange Commission
United States Court of Appeal Second Circuit, 1943 139 F.2d 434
2. Derry v Peek[1889] 14 App Cas 337
3. Hughes v. Securities Exchange Commission, United States Court of
Appeals, District of Columbia Circuit, 1949 174F.2d 969
4. New Brunswick and Canada Railway and Land Co. Ltd v
Muggeridge [1860] 30 Lj Ch 242
5. Peek V. Gurney (1873) L.R. 6 .L.377
6. Re Darby, ex p Brougham [1911] 1 KB 95
7

8. ACRONYMS
1. CMA Capital Markets Authority
2. USE Uganda Securities Exchange
3. IPO Initial Public Offering
4. RA Regulatory Agency
5. SRO Self Regulatory Organisation
6. BAT British American Tobacco (Uganda) Limited
7. UCL Uganda Clays Limited
8. EADB East African Development Bank
9. MTN Mobile Telecommunications Network
10. EMH Efficient Market Hypothesis
11. FDI Foreign Direct Investment
12. OTC Over the Counter Markets
13. UIA Uganda Investment Authority
14. NRM National Resistance Movement
15. GDP Gross Domestic Product
8

9. ABSTRACT
This thesis examines the legal and commercial implications of Government intervention
for investor protection in Uganda’s equity market. It begins by discussing the rationale of
the regulation and importance of investor protection in the development of equity
markets and capital markets as a whole.
The thesis further examines the operation of the Capital Markets Authority as the
regulatory agency and the distribution of regulatory responsibility among the regulatory
organs. The study takes a step-by-step tour of the primary and secondary markets and
examines the legislation related to the equities markets and its impact on investor
protection.
The study creates a link between capital market development and investor protection
and looks at the conflict between the regulated and free markets. It discusses
contradictions and constraints to market development and how they affect investor
protection. It also sets out supporting systems and gives recommendations for the
development of an efficient capital market, with emphasis on equities markets.
While this research is primarily concerned with Uganda’s equity markets, reference is
made to other markets to fill the gaps left by the new capital markets regime.
9

10. CHAPTER ONE:
History and Evolution of the Global Concept of Investor
Protection in Equity Markets:
General Background Information:
Government regulation of markets can be traced as far back as the era of Mercantilism
in Europe, which ran from the demise of feudalism until the beginning of the Industrial
revolution. In this period, countries regulated the market in order to create a favourable
balance of trade, accumulate gold and silver from other nations, and ultimately increase
the wealth and power of the state.
“This was the first modern alliance between big government and business”1
The Advent of classical liberalism in the eighteenth century and the works of scholars
like Adam Smith (1723- 1790) brought about an economic revolution. The paradigm of
Adam Smith contended that, by virtue of “the invisible hand” of capitalism, if individuals
pursue their selfish interests producing, buying and selling in a free, meaning
unregulated, market, then wealth is created and social welfare and prosperity grows.2
This he put in his book “The Wealth of Nations” thus: “It is not from the benevolence of
the butcher, the brewer, or the baker that we expect our dinner, but from their regard to
1
“Adam Smith and the New Paradigm- Economics and its Beginning” at
http://krypton.mankato.msus.edu/~renner/eaib.htm
2
“Neoliberalism- A Short Course”- http://memebers.tripod.com/~PPLP/neoliberalism.html
10

11. their own interests. We address ourselves not to their humanity, but their self love.”3 The
economic system proposed by this new paradigm came to be represented by the French
term “laissez-faire”, translated to mean “let alone”. The liberalists advocated for the
removal of government control with competition remaining as the sole controlling force in
the market.4
The liberalist school of thought did not go without some criticism from a number of
nineteenth century economists and scholars who advocated for “dirigisme,” or
“government control.” These included the proponents of the teachings of Karl Marx,
Friedrich Engels, and John Maynard Keynes (1883- 1946). These scholars argued that
the liberalists, and the capitalism they had created from their teachings, “had sown the
seeds of their own destruction.”5 John Keynes wrote a book entitled “The End of
Laissez-Faire” warning about the evils of unregulated markets in 1926, three years
before the 1929-market crash and “Great Depression” in the United States of America.
It was believed that lack of transparency and market abuses caused that crisis.
Regulatory legislation was therefore passed to redress market failures, which occur
when the private marketplace fails to operate properly and in a competitive manner.
There are three main types of market failure, namely natural monopoly, externalities,
and asymmetrical information.6 Natural monopoly occurs as a result of unfair competition
and price fixing by companies with a large share of the market and this may lead to
exploitation. Externalities are costs “not properly accounted for in the prices which are
3
Adam Smith: An Inquiry into the Nature and Causes of the Wealth of Nations (1776) Book 1, Chapter 2.
4
This line of thought resurrected in the twentieth century capitalist era and neoliberalist scholars, Friedrich
Hayek and Milton Freeman, even won the Nobel Prize.
5
“Capitalism, Marxism and Reformism- Neoliberalism- A Short Course”-
http://memebers.tripod.com/~PPLP/neoliberalism.html
11

12. established in a competitive market.”7 Here a party outside the market may incur a cost
in that market, for instance, a company that wishes to cut its costs by dumping waste in
a nearby river may cause someone with no interest in that company to incur a cost from
the resultant pollution. Lastly, asymmetrical information occurs when the “insiders” or
promoters of share offerings withhold information that should be made public to
investors if that information does not serve their interests. The insiders can use this
informational advantage to exploit the investor.
Unlike the Mercantilist era, this new era of regulation was mainly aimed at protecting
investors. It has been said, that;
“An investor has the heart of a lamb, the feet of a cheetah, and the memory of an
elephant” 8.
This means that the investor usually makes decisions based on information given to him
by “insiders” in the market who have an informational advantage over him or her, making
him or her vulnerable and at a disadvantage in case of market failures.
Capital markets were developed with the aim of checking market failures. Investor
supremacy was highest on the agenda and legislation was passed in various countries
to regulate these markets.
6
Tim S. Campbell: Financial Institutions, Markets and Economic Activity (1982) McGraw Hill Inc. USA.
Page 367
7
Ibid.
8
Ms. Candy Wekesa; “The Role of a Lawyer”- Capital Markets Journal, Volume 3, Number 2, April/
December 1999. Page 15
12

13. “Investors are not expected to be protected against normal market risks. But they do
need to be made aware of them in what are commonly referred to as ‘health warnings in
advertisements and prospectuses.”9
Investor protection was not a strong point in Uganda before the inception of the Capital
Markets Authority (hereafter called the CMA) and many investors did not get the benefit
of adequate disclosure.
The CMA was therefore established in 1996 to regulate and oversee the capital markets
industry in Uganda with the goal of promoting transparency and protecting the investor
from potential market failures that may arise from fraud. The CMA is a government
agency created by statute, with “broad powers ranging from rule-making to licensing to
enforcement actions.”10 The CMA is therefore the Uganda capital market’s primary
regulatory body.
Capital Markets in general have a number of goals. These can be divided into four
groups: National goals involve privatisation of national companies, strengthening
domestic companies, developing local ownership and attracting foreign investment.
Entrepreneurial goals involve capital formation, diversification of ownership risks and
alternative financing sources. Investor goals include efficient use of investment capital,
diversification, and liquidity. Finally, regulatory goals include consumer protection,
informational needs of the investor, allocative efficiency, and corporate governance.
9
Mbumba S. Kapumpa: “Investor Protection in the Zambian Securities Market”- Capital Markets Journal
Vol. 4. No.1 January/ March, 2000. Page 10
10
Stuart R. Cohn and Fred Zake: Capital Market Development in Uganda, (1999) ILI- Uganda (Kampala)
Page 7.
13

14. It would therefore be justifiable to say that if a culture of transparency is adopted in our
capital markets we will see increased investor confidence and a corresponding increase
in investment. This will ultimately boost capital utilisation and value and wealth creation,
which would be a positive step in the development of our economy.
The powers of the CMA are detailed in its parent statute as: “(i) The development of all
the aspects of the capital markets, with particular emphasis on the removal of
impediments to, and the creation of incentives for longer term investment, (ii) the
creation, maintenance, and regulation, through implementation of a system in which
participants are self regulatory to the maximum practicable of the market in which
securities can be issued and traded in an orderly, fair and efficient manner, (iii) the
protection of investor interests; and (iv) the operation of a compensation fund.”11 The
CMA is in charge of overseeing the participants in the market in what is termed, “the
regulatory pyramid”, which shall be discussed in detail in chapter two.
”The basic philosophy of regulation is to provide an environment where markets and
investments are allowed to grow on a sound long-term basis. The spill over effects of
this will be the capital markets contributing to the functioning of the economy and the
creation of wealth. Maintaining the integrity of markets and investor-confidence is
fundamental to the achievement of this goal…”12
11
Capital Markets Authority Statute, 1996. Section 6
12
Ms. Candy Wekesa: Legal and Regulatory Issues in Capital Markets. Paper presented at a seminar
entitled “Development and Regulation of Securities and Capital Markets, May 15- 26, 2000 at ILI-Uganda.
Page 23
14

15. Statement of the Problem:
A developed capital market is of great importance to the development of a country’s
economy. “The capital market has often been likened to the brains of an economy…and
are a ‘sine qua non for sustainable economic development.”13 The level of investment
and volume of funds involved in the market, however, greatly increase the possibility of
an economic crisis in case one part of the system defaults. Examples of economic
crises that occurred as a result of this are the American market crash and “Great
Depression” of 1929, and the capital outflow, devaluation and stagflation in Mexico and
East Asia in 1994 and 1997 respectively. In the conflict between regulation and
liberalization it has been contended thus:
“The adverse effects of capital market liberalization can easily overwhelm whatever
small benefits trade deregulation may bring.”14
The statement shows that the need for regulation is greater than the capitalist need for
unregulated “laissez-faire” or free trade even though the latter may bring about a
semblance of economic growth.
The principal aim of regulation is to promote transparency in the market and requiring full
disclosure by the issuers, or promoters of shares does this. This would limit the market
failure of asymmetrical information and the “insider” promoter using his informational
advantage to cheat the investor.
13
“Why Regulate in the First Place- The Securities Commission Business Plan”
http://www.sc.com.my/html/publications/inhouse/businessplan/scbp_regulate.html
15

16. Uganda’s capital markets regime is rather new, having started in 1996. It therefore
remains to be seen how it will address the market failures that may exist in Uganda’s
securities market.
Hypothesis:
The study hypothesises that:
i. Capital markets are very important to countries. A developed capital market would
lead to better use of savings, capital formation, and value and wealth creation both
for individual investors and the state, and overall economic growth.
ii. Another hypothesis is that an efficient market is one in which prices of securities
reflect the impact of all the information publicly available concerning the future
prospects of the associated companies. This is what is referred to as the “Efficient
Market Hypothesis.”15 This highlights a conflict between the investor, who needs full
disclosure in order to make an informed decision, and the issuers and promoters of
shares who would like to release information only if it serves their interests. The
question, therefore, is: How much information is necessary? Proponents of this
hypothesis contend that the market price of a commodity “impounds all public
information and new information only becomes available at random,”16 therefore, the
actual value of a commodity takes a back seat to the bargaining power of the
participants in a market.
14
“Negative Effects of Trade and Capital Market Liberalization- Third World Network on Line”:
http://www.twnside.org.sg/title/negat-cn.htm
15
SID MITTRA AND CHRIS GASSEN: Investment Analysis and Portfolio Management. Harcourt Brace
Jovanovich, Inc. New York (1981). Page 6
16
Ibid
16

17. iii. The study further hypothesises that owing to the imbalance in bargaining power
between the investor and promoter, there is a need for government intervention to
protect the investor without, however, negatively affecting market development.
There is a need to strike a balance between market regulation and the maintenance
of the freedom of trade17.
iv. Finally, the study hypothesises that investor protection leads to an increase in
investor confidence and a rise in levels of investment. This will ultimately lead to
individual, market, and national economic growth and development.
Objectives of the Study:
This research paper aims at examining the state of market regulation in Uganda with
emphasis on investor protection. It studies, the operation of the primary and secondary
markets, outlines the problems that investors face, shows the action that regulatory
bodies like the CMA have taken, and finally gives recommendations for the
strengthening of the new market regulation system in Uganda. This system of regulation
would, in turn, boost investor confidence, increase investment, and ultimately lead to
economic growth. This shows therefore that regulation is very crucial for economic
development and should be discussed.
The research paper shows the need for investor protection based on the principle of
investor supremacy. It further shows the dangers that investors face in the securities
market and problems the regulatory agencies like the CMA face in rule making,
licensing, and enforcement in the securities market.
17
Guaranteed in article 40 of the 1995 Constitution of the Republic of Uganda
17

18. The study makes a critical assessment of the laws governing investment and market
regulation in Uganda, with emphasis on investor protection. It also attempts to show the
dangers that may arise from lack of clarity, as well as contradictions in the applicable
law, particularly the jurisdictional conflict between the Companies Act and the
Capital Markets Authority Statute.
The research paper makes a comparative study of the pre- CMA share offer, by
Greenland Group of Companies and the post-CMA initial public offerings by Uganda
Clays Limited and British American Tobacco Limited in a series of case studies. These
case studies show, in the Ugandan context, the problems that would arise if there were
no adequate disclosure and due diligence in share offers, and thus, the need to regulate
the market.
The paper finally makes recommendations for the regulation of the market, restoration of
investor confidence, and consolidation of the securities market in Uganda. This would
ultimately lead to a better investment climate in Uganda and a corresponding economic
gain.
Significance of the Study:
i) “Many studies have been done to examine the performance of emerging capital
markets in developing countries. However, many of these studies focus on the
emerging capital markets of Southeast Asia, Latin America, and the Caribbean.
Sub-Saharan Africa, and Uganda in particular, has not received the attention that the
18

19. Southeast Asia and Latin American countries have received in the academic
literature.”18 To the international entrepreneurs, this study aims at placing the Sub-
Saharan stock market on the map. Many companies see emerging markets as a
good source of capital and "the lion markets of Africa are now developing in such a
way that investors interested in emerging markets can no longer ignore them.” 19
ii) For the policy makers, this study raises the following policy research questions: (a)
What are the linkages between capital market development and economic
development? (b) How much protection should an investor be accorded? (c) What
is the rationale for investor protection and government intervention in Uganda’s
equity markets? (d) To what extent has the existence of a regulated equity market
improved the prospects of raising long-tem capital and protecting investors? (e) How
is the onus and power of regulation shared among the various regulatory organs? (f)
What is the effect of legal and administrative regulation of the equities market on
investor protection? The study is timely because it deals with these, and other
related questions raised by policy makers and individuals concerning investor
protection in equities markets, as well as capital market performance and regulation
in Uganda. A systematic investigation of the research questions has led to the
formulation of policy recommendations aimed at developing efficient capital markets
in Uganda. These policy recommendations may be used by the policy makers and
various donor agencies concerned with the development of the equity, and capital
markets generally in Uganda.
iii) For the investor, the study focuses on rights issues and shows regulation as a tool
for promoting the economic rights of investors. The focus on investor protection
18
Sam Q. Ziorklui: Capital Market Development and Growth in Sub-Saharan Africa: The Case of
Tanzania, African Economic Policy Discussion Paper Number 79 February 2001. Page 2
19

20. highlights the need for a more public-oriented capital market regime and shows the
progress made, as well as the shortcomings of the current regulatory regime.
iv) The equity market in Uganda has been a useful tool in the ongoing public enterprise
reform and divestiture programme, with the Government of Uganda divesting its
shares in British American Tobacco Limited and Uganda Clays Limited. The
workings of the regulatory structure of the CMA are therefor worthy of discussion, as
the sale of shares in these companies to the public will affect investors, the economy
and the nation at large.
v) Though the capital market regime is rather new in Uganda, having only started in
1996, and the market is still in its infant stages with only two equities listed on the
Uganda securities exchange, the evolution of a securities market marks a turning
point in the country’s development. For companies, this indicates a shift from the
traditional method of raising finance through high interest loans, to the cheaper, more
abundant equity method. Equity markets therefore lead to easier access to capital
for entrepreneurs, better corporate governance, investor confidence, an incentive for
public savings and better resource utilisation. This will, in turn lead to increased
output, more wealth created and overall economic growth. It is therefore necessary
to create a forum to discuss this contemporary subject and it’s impact on the
entrepreneur, investor, market, and the economy at large.
vi) With the advent of globalisation, the need for a capital market to promote foreign
investment and keep up with other developing and developed countries has
necessitated the evolution of a regulated capital market in Uganda. This study is
aimed at provoking discussions about the performance and prospects of Uganda’s
capital market regime vis-à-vis other regional and global markets.
19
Per Kenneth Mwenda in “Securities Regulation And Emerging Markets: Legal And Institutional Issues
For Southern And Eastern Africa” Murdoch University Electronic Journal Of Law Issn 1321-8247 Volume
20

21. vii) Apart from this study being an academic requirement in partial fulfilment of my
degree, it aims at tracking a new economic era in Uganda and studying a capital
markets regime that will shape the economic future of Uganda.
Justification for the Study:
The state of investment in Uganda before the advent of the CMA put emphasis on the
positive capital market theory which stressed the “is” rather than the “ought” which was
stressed by the normative capital markets theory. This investment regime had the
characteristics of a “laissez-faire” market, without strict government regulation especially
as far as disclosure requirements were concerned. This regime was manifested in the
share offer of Greenland Group of Companies, where the investors did not have
adequate information and as a result, did not make informed investment decisions. The
birth of the CMA was therefore necessary to address the lacuna in market regulation in
Uganda and as a result, increase investor confidence and volume of investment in
Uganda, with an aim of fostering economic growth and development.
The CMA has been in force for only four years and the volume of transactions in the
securities exchange is still rather low. This infant regime should therefore be studied
with an element of projection into the future.
The CMA is at the top of the regulatory pyramid in Uganda’s capital market and it gets its
power from the Capital Markets Statute of 1996. However, the CMA conflicts with the
Registrar General’s Office, where registration statements are filed. The Registrar
7 Number 1 (March, 2000) Page 1.
21

22. General gets his authority from the Companies Act, which does not have rules of
regulation as strict as those of the Capital Markets Authority Statute.
Methodology:
In compiling data for this research paper and testing the hypothesis a number of
methods were employed:
A comparative study of legislation governing capital market regulation shows some
conflict especially between the Companies Act and the Capital Markets Authority Statute
and the antecedent regulations. There is a need to study the legislation and make
resolutions with regard to the aspects of regulation and enforcement in the laws of
Uganda.
Libraries will be used to review published literature, information from conferences,
textbooks, newspaper articles and case law. Furthermore, Internet research is a source
of a wide range of documents that are very useful and informative.
It is necessary to conduct field trips to widen the research base and have a more
grounded approach. Interviews with officers from the CMA, Uganda Securities
Exchange, the Registrar-General’s office, and various brokerage firms like MBEA
Brokerage Service (Uganda) Limited will enrich my research by giving me more accurate
and exhaustive information. These offices are also a source of a lot of published
material that would come in handy in my research.
22

23. The aforementioned methods of research were advantageous in that:
Reading through records, reports, textbooks, and related publications exposed the
researcher to a wide range of literature, which showed the history and jurisprudence as
well as the advances in capital markets regulations. The articles of jurisprudence
showed the historical basis and a greater insight into investment and capital markets.
The study of legislation showed the loopholes and areas in the regulatory legislation that
are silent and need to be addressed.
Interviews and newspaper articles give the Ugandan context and help reconcile the
Ugandan situation with the global scenario.
The problems outlined are accompanied by recommendations that suggest ways to
improve the situation of investors in Uganda.
Literature Review:
This review seeks to examine the existing literature about the conditions affecting the
development and regulation of the Ugandan security market in general, and equity
market in particular.
The capital market plays an important part in economic development of any country. It is
therefore important to define the concept of investment. SID MITTRA AND CHRIS
GASSEN: in ”Investment Analysis and Portfolio Management “ define investment as the
23

24. commitment of a given sum of money at the present time in the expectation of receiving
a larger sum in the future.
The history and development of capital markets has been characterised by a struggle
between two antagonistic forces, usually referred to as “Laissez-Faire” and “Dirigisme”
or liberalism and interventionism respectively. From the beginning of the Industrial
Revolution in the nineteenth century, until the Great American Depression in 1929 the
market was inclined more to the liberalist side. The proponents of “Laissez-Faire”
followed the teaching of scholars like Adam Smith (1729- 1790) and David Ricardo
(1772- 1823).
ADAM SMITH, in An Inquiry into the Nature and Causes of the Wealth of Nations20
advocated for the market to be guided only by forces of competition and self-interest,
writing: “It is not from the benevolence of the butcher, the brewer, or the baker that we
expect our dinner, but from their regard to their own interests. We address ourselves not
to their humanity, but their self-love.” However, he does consider the possibility of abuse
of this market system and in the same book, writes: “Consumption is the sole end and
purpose of production and the interest of the producer ought to be attended to only in as
far as it may be necessary for promoting that of the consumer.”21 Adam Smith’s work
shows the development of the investment climate along with the development of
capitalism in the eighteenth century. However, his work was limited as the level of trade
was still very low at that time and the market was not as sophisticated as it is now. His
work does not deal with the Ugandan capital markets situation and is generally used as
a foundation for the study of the need for regulation.
20
Adam Smith: “The Wealth of Nations,” Op.Cit, Book 1, Chapter 2.
21
Adam Smit: “The Wealth of Nations” Op.cit. Book 4, Chapter 8.
24

25. The work of DAVID RICARDO was similar to Adam Smith’s and he asserted, in “The
Principles of Political Economy and Taxation (1817) that the free market is “the best
allocation of resources” and “the market is always right,” advocating that the poor were
to blame for market imperfections. Like Adam Smith’s work, his writings provide a
historical perspective in the development of capital markets, but can not be used in an
analysis of contemporary capital markets.
The liberalists were opposed by proponents of “Dirigisme”, or government control. Many
nineteenth century scholars criticised “Laissez-Faire” markets and they included Karl
Marx, Friedrich Engels, and John Maynard Keynes (1883- 1946)
KARL MARX and FRIEDRICH ENGELS in “The Communist Manifesto” studied the
labour relations in portraying an imbalance in bargaining power. They contended that
“Wealth is created in blood, sweat and tears” but this is not always equal to value, which
is a factor of haggling and bargaining. In “Das Capital: a Critique of Political Economy
Volume II, Edited by Friedrich Engels, they contended that the free market created a
two-tier community with a wealthy bourgeoisie minority and a relatively poorer proletariat
majority, creating a class struggle. However, Marx concentrated mainly on labour
relations and did not emphasise investment and capital markets. This could be
because, like Adam Smith and other eighteenth and nineteenth century scholars, he
lived in a time when the market was not as sophisticated as it is now, and therefore his
work can not give an accurate portrayal of the state of the market today.
JOHN MAYNARD KEYNES (1883- 1946) wrote about the dangers of free markets in his
book “The End of Laissez-Faire”, in 1926 and three years later in 1929, the American
25

26. stock market crashed due to market failure and lack of due diligence and transparency.
His twentieth-century writings draw a clearer picture of the market, and are probably
more relevant to the public sector driven market in Uganda than the work of the
eighteenth and nineteenth century scholars. His work was, however limited to the
American economy and his writing, also has mostly historical value to the study of
Uganda’s equity market.
TIM S. CAMPBELL, in “Financial Institutions, Markets and Economic Activity”, describes
the ingredients of market failure as “natural monopoly, externality, and asymmetrical
information”22 and explains the need for government regulation. This is further
emphasised by RUMU SARKAR in “Development Law and International Finance”23
contends; “the state assumes the role in mitigating the harshness of capitalism…plays a
central role in deciding what safety nets to provide.”24 Their work has great descriptive
value, but, provides a perspective outside Uganda, and does not adequately cover the
emerging markets.
Uganda’s capital markets are governed by the CMA, which gets its authority from the
CAPITAL MARKETS AUTHORITY STATUTE, 1996. We also have Part III of the
COMPANIES ACT OF UGANDA, 196425 that deals with capital market activity.
Furthermore, there are a number of regulations promulgated under the Capital Markets
Authority Statute governing various aspects of the market. These include:
The Capital Markets (Establishment of Stock Exchanges) Regulations
The Capital Markets (Licensing) Regulations
22
Page 367.
23
International Economic Law Series; Kluwer Law International (1999), London
24
Page 39.
25
Cap 85, Laws of Uganda,
26

27. The Capital Markets (Prospectus Requirements) Regulations
The Capital Markets (Conduct of Business) Regulations
The Capital Markets (Advertisement) Regulations
The Capital Markets (Exempt Dealers) Regulations
The Capital Markets (Accounting and Financial Requirements) Regulations
The Capital Markets (Register of Interest in Securities) Regulations
The legislature gives the CMA legitimacy and power to carry out its duty. This power is
supplemented by the rules of the stock exchange, also called the Self Regulatory
Organs (SRO), which may include the memorandum and articles of association of a
company. The licensees in a market may also issue codes of conduct and procedure
manuals to govern their operation and these may act to regulate the capital market. It
should be noted, however, that the Capital Markets Authority Statute is the main law
governing capital markets operation in Uganda and these rules must not be contrary to
it. There has been a little conflict between the Companies Act and the Capital Markets
Authority Statute and the numerous laws and regulations may prove tedious to the
simple investor, thereby diminishing their informational and regulatory value, but the
detail is important to maintain the high market standards of transparency.
The capital market in Uganda can be described as an emerging, rudimentary market.
STUART R. COHN and FRED ZAKE, in “Capital Market Development in Uganda”
explain in detail the operation of the market in Uganda, discussing its role in
privatisation, regulatory role and power. It also extensively looks at the relevant laws
governing capital markets in Uganda. This book is a contemporary study, which gives
insight on the market operation in Uganda and is very valuable for a study of Uganda’s
capital markets regime.
27

28. Material from a seminar entitled; “Development and Regulation of Securities and Capital
Markets”26 conducted by Professor Stuart Cohn, gave exhaustive material on the capital
markets regime in Uganda, especially in relation to other more developed markets. A
paper entitled “Legal and Regulatory Issues in Capital Markets” by Ms. Candy Wekesa
presented at the above mentioned seminar explained the regulatory structure of the
capital markets regime in Uganda. This material is very detailed and valuable to my
study, but the capital market is very dynamic and the information may soon become
outdated.
Further information on capital markets in Uganda can be found in the “Capital Markets
Journals” which are produced quarterly by the CMA and are very up to date and
informative. Other informative CMA publications include “General Information and
Guidelines for Issue of Securities”, a simplified pamphlet. These may be supplemented
with Internet research.
Scope of the Study:
The purpose of this study is to critically analyse the role of the CMA in regulating capital
markets in Uganda with particular emphasis on investor protection.
The study places Uganda in the global market and gives a comparative analysis of
market regulation in Uganda and other more developed markets in Africa, Europe, and
North America.
26
May 15- 26, 2000 at the International Law Institute- Uganda (Kampala)
28

29. A review of the history and jurisprudence of capital markets serves to show the evolution
of regulation of investment. A comparative study of pre and post- CMA investment
regimes will illustrate and justify regulation of the market further.
A study of the contemporary legislation governing regulation of capital markets shows
the advances in investor protection and shows how the law can be reformed to serve the
interests of investor sovereignty better. The study will further show the inadequacies in
regulation and enforcement as well as the role of different regulatory bodies. This
research also shows the laws of Uganda, which are applicable to capital markets and
how these laws will help in investor protection.
Lastly, recommendations will be put forth in the Ugandan, and the global context,
suggesting legal and extra-legal ways of promoting investor sovereignty, protection, and
confidence through market regulation.
Definition of Some Concepts:
Before tackling this research, it is necessary to define a few key terms for easier
comprehension of the paper.
29

30. SID MITTRA AND CHRIS GASSEN: in ”Investment Analysis and Portfolio Management“
defines investment as the commitment of a given sum of money at the present time in
the expectation of receiving a larger sum in the future.27
A market can be defined as a situation where two or more people meet to express their
choices with regard to financial assets and the market is the place or mechanism where
the said assets are exchanged28. Markets assume different classes based on the type
of traded instrument and degree of regulation. The less regulated markets are known as
the “Over the Counter” Markets (OTC), while formal stock exchanges are vigorously
regulated.29 The market determines the value of the asset, thereby creating wealth and
income to participants in case the market value of the said asset appreciates. A
financial asset is a future claim on some future income, while wealth can be defined as a
right to an income stream, which an asset is expected to generate.
According to the CMA publication entitled: “General Information And Guidelines For
Issue Of Securities – July, 1999”, capital markets are “sophisticated markets where the
products for sale include equity or debt securities issued by government or corporate
bodies, and units in collective investment schemes and these securities include shares,
stock, bonds, debentures, notes, rights, warrants, options of futures in respect of shares,
bonds or debentures.”
27
Chapter 1 page 4.
28
Tim S. Campbell: Financial Institutions, Markets and Economic Activity (1982) McGraw Hill Inc. USA.
Page 14.
29
Leo Kibirango: Securities Markets: A Reliable and Credible Source of Low Cost Capital: Capital
Markets Journal: Vol. 4, Jan/ Mar, 2000, Page 36
30

31. The two major forms of securities are equity and debt. Equity securities are
investments, which “become part of the permanent capital of a company”30 and they
usually take the form of stock in the company. The investor, in effect, buys a part of the
company but has neither a claim to repayment of the principal, nor payment from profits.
The equity holder mainly makes a profit from secondary trading on the stock market.
Equities are a good source of low cost capital to the entrepreneurs, but the risk levels
are high for the investors.
Debt securities occur when a lender gives money to the company “on the promise that
both the principal and interest will be paid.”31 They may be in the form of treasury bills,
bonds and fee notes, and are more risky to the entrepreneur and less risky to the
investor than equity securities.
The capital market can be divided into two distinct sections, namely the primary and
secondary markets. According to TIM S. CAMPBELL in his book “Financial Institutions,
Markets, and Economic Activity”32 the primary market is the market where new securities
are issued to obtain new funds. This is done by way of an Initial Public Offering (IPO)
where the public are invited to buy shares in an enterprise that is going public for the first
time.
The secondary market on the other hand “comprises the market for outstanding financial
assets”33 This, according to “General Information and Guidelines for Issue of Securities
– July, 1999” is a facility where securities initially acquired from the primary market are
subsequently traded.
30
Stuart R. Cohn/ Fred Zake: Capital Market Development in Uganda: Op.Cit. Page 20
31
Ibid, Page 22
32
Tim S. Campbell: Financial Institutions, Markets and Economic Activity (1982) McGraw Hill Inc. USA.
page 150
31

32. The main participants in a capital market include sellers or promoters of securities and
other financial instruments who seek to obtain money from the sale of the shares on the
one hand, and potential purchasers who are willing to invest in the offered securities.
The market also has investment advisors, accountants, lawyers, underwriters, broker-
dealers and broker representatives and the regulatory organs that are collectively
instrumental in facilitating the transactions in a securities exchange.
A broker is one who buys or sells securities as agent for a customer while a dealer is
one who buys or sells securities for its own account34. Brokers give their clients
investment advice for which they charge commissions, while dealers try to buy shares
cheaper than they sell them, thereby making a profit. While the “Ancien Régime” made
a distinction between the two it became clear over time that this was impracticable and
firms of ”market makers”35 acted as both broker and dealer.36 It is more common now to
have the dual-purpose broker-dealer firms. Broker representatives, commonly referred
to as “stockbrokers“, are employees in the broker-dealer firms and deal directly with
individual customers.
33
Ibid
34
Stuart R. Cohn/ Fred Zake: Capital Market Development in Uganda: Ibid. Page 3
35
Also known as broker-dealer firms.
36
Bernard Grey: “Beginners’ Guide to Investment:” Investors Chronicle; Century Business (London,
1991) Pages 28, 29 and 31
32

33. Synopsis of the Study:
CHAPTER ONE:
This is the introductory chapter. It introduces the global concept of equity and capital
markets and gives a historical background of the study. It further analyses the
jurisprudence and state of affairs that led to the need for regulation in the first place. It
states the problem that the research paper wishes to address and gives a hypothesis for
the study, thereby showing the scope, objectives and significance of the research.
Lastly, it lays down the methodology used, and defines some of the terms used in the
study.
CHAPTER TWO:
This chapter deals with the legal and administrative duty and powers of the CMA with
regard to regulation of primary markets. It studies the Companies Act37 and the Capital
Markets Authority Statute and its antecedent regulations from which the CMA, as the
regulatory agency gets the authority to register, license, oversee companies and enforce
standards of adequate disclosure and due diligence during the Initial Public Offering
(IPO) of new issues. The IPOs of Uganda Clays Limited and British American Tobacco
(Uganda) Limited are used for illustration.
CHAPTER THREE:
37
1964, Cap 85, Laws of Uganda, Part III
33

34. This chapter studies the CMA’s role in the secondary market and its legal and regulatory
duties and powers with regard to the Self-Regulatory Organization (SRO) also known as
the stock exchange. The chapter further studies the Capital Markets Authority Statute
and its antecedent regulations as well as the SRO rules and regulations and licensees’
code of conduct and procedures manuals, which govern the secondary market. The
chapter studies the effectiveness of the continuous disclosure process and operation of
the compensation fund in the pursuit of a transparent and efficient secondary market, all
in the interest of investor protection.
CHAPTER FOUR:
This chapter deals with the status of the equity market regime in Uganda. It studies the
conflicts between laissez faire and dirigisme, and its effect on investor protection and the
development of an efficient equity market in Uganda. It further studies the constraints to
the operations of the public sector driven capital market regulatory structure in Uganda
and their effect on investor protection.
CHAPTER FIVE:
This is the conclusive chapter and it puts forward recommendations based on the
observations drawn from the research. It shows the link between investor confidence
and capital market development and stipulates the “supporting systems” of the CMA
which are, in essence, legal and extra-legal reforms that need to be made to improve the
investment climate, and consequently, the market regime in Uganda. These reforms are
in line with empowering the investor and generally fostering investor supremacy. Issues
like investor education, creation of a “modern” commercial law regime, developing the
supply side of the market, market incentives, promoting savings, corporate governance,
34

35. capacity building and improving the macro and micro economic conditions of the market
are assessed in the context of investor protection.
35

36. Chapter Two:
The Initial Public Offering (IPO): The Capital Markets Authority’s
Role in Regulating the Primary Market
Uganda’s capital market is divided into the primary and secondary market. When a
company makes a decision to go public, the new issues of shares are sold to the public
in the primary market in what is called the initial public offer.38 Subsequent transactions
of these shares are done in the secondary market. This chapter examines government
intervention for investor protection and other regulatory considerations in an IPO of
equities in the primary market.
The capital markets regime in Uganda is public sector driven with the Government
deliberately setting up the necessary regulatory structure to create and maintain a
transparent and efficient market in which the interests of the investor are paramount and
can be protected.
Uganda employs the “cocktail approach” of regulation, combining oversight, and self-
regulation. This it does by using a “Regulatory Pyramid.”39 This method is effective, in
that, it apportions the onus of regulation, supervision, and enforcement fairly among the
market institutions, namely, “the Regulatory Agency, the Self Regulatory Organisation40,
38
Hereinafter referred to as the IPO.
39
Ms. Candy Wekesa: Legal and Regulatory Issues in Capital Markets. Paper presented at a seminar
entitled “Development and Regulation of Securities and Capital Markets, May 15- 26, 2000 at ILI-Uganda,
Page 1. Also see Appendix A on page 81.
40
Herein after referred to as the SRO
36

37. that is, the Stock Exchange and Member Associations, and the licensed firms
themselves.”41
The Capital Markets Authority is the Regulatory Authority, and, being at the top of the
regulatory pyramid oversees the SRO and the licensees in both the primary and
secondary markets. This regulatory body derives its existence and power from
Parliament42 and as a product of legislation its powers and duties are clearly stipulated in
the enabling Statute to avoid misunderstanding.
The Regulatory Agency is empowered by both the Companies Act43, and the more
recent Capital Markets Authority Statute44 and its antecedent regulations, to carry out its
role of protecting the investor from any market failures and ensuring that the market is
fair, efficient, and transparent. These functions and powers are discussed in section 6 of
the statute45 and extend to licensing market operators, regulating and supervising
market practices and compensating investors for losses.
The first duty of the CMA is developing all aspects of the market, removing impediments
and creating incentives for longer-term investment46. In furtherance of this goal, it is
empowered to advise the Minister on matters relating to the development and operation
of capital markets47.
41
Ibid
42
through the Capital Markets Authority Statute, 1996
43
1964, Cap 85, Laws of Uganda
44
1996
45
Capital Markets Authority Statute, 1996, Section 6
46
Ibid. Section 6 (1)(a)
47
Ibid. Section 6(2)(a)
37

38. The second duty of the CMA is to create, maintain and regulate the market and
implement a system where the market is self-regulatory as far as possible48. In carrying
out these functions, the statute gives the CMA jurisdiction in registering, licensing,
authorising or regulating stock exchanges, investment advisers, registrars, securities
brokers or dealers and their agents. The CMA also has the duty of maintaining
surveillance over securities to ensure orderly, fair and equitable dealings in securities
with a view to maintaining proper standards of conduct and professionalism in the
securities business49.
The duty to protect the investor is perhaps the most important function of the CMA50. In
pursuing this goal, the CMA is empowered to formulate principles for the guidance of the
securities industry51 and monitor the solvency of licence holders and take measures to
protect the interests of customers where the solvency of any license holder is in doubt52.
The CMA is charged with performing the functions conferred on it by section 43 of the
Companies Act53, which deals with registration of the prospectus. This empowers the
CMA to set the disclosure standards during an IPO. The CMA is further empowered to
adopt measures to minimise and supervise any conflict of interest that may arise for
brokers or dealers and protect the integrity of the securities market against any abuses
arising from any unfair advantage the issuer might use to the investor’s detriment. This
would ultimately create the necessary environment for orderly growth and development
of the capital market.
48
Ibid. Section 6(1)(b)
49
Ibid. Section 6(2)(c)
50
Ibid. Section 6(1)(c)
51
Ibid. Section 6(2)(d)
52
Ibid. Section 6(2)(e)
53
Ibid. Section 6(2)(i).
38

39. The practice of insider trading is one of the most common offences in the primary
market. This involves the use of confidential material information by company officers,
directors, employees and other insiders to buy or sell shares from or to an unsuspecting
public54. This asymmetrical information could take the form of material information about
the company, which is withheld from the public that would lead to the appreciation or
depreciation of the share price of the equities. These insiders use this unfair
informational advantage to influence the price of securities to the detriment of the
prospective investors. Insider trading is contrary to the requirement that the market be
transparent and efficient and is therefore prohibited by law55.
The CMA is finally empowered to intervene in case the investors incur losses and this it
does by establishing an investor compensation fund56. This shows the supremacy of the
investor and the need to protect him or her from any loss as a result of market
imperfection.
From the, above, we see the extent of Government intervention57 in the securities
markets to ensure a fair and efficient market and promote investor protection. This
shows that capital market regulation and investor protection are now a priority of the
government.
In order to detect, deter and penalise partiality of market structures, informational
equivocation, and unfair market practices, the regulator has the task of approving stock
54
Stuart R. Cohn and Fred Zake: Capital Market Development In Uganda: A joint Publication of ILI
Uganda and ILI Washington, 1999 Page 173
55
Capital Markets Authority Statute, 1996, Section 89
56
Ibid. Sections 6(1)(d) and 82 of the CMA Statute, 1996
39

40. exchange and system operators, and making listing and other rules to give the investor
fair access to market facilities and information. The regulator further ensures that the
information given is relevant, timely, and widespread, especially with regard to market
prices in a bid to make the market efficient. This pre- and post-trade information should
be available to the public to let investors know if and when they can deal. These three
values are closely linked to investor protection and promote market integrity, investor
confidence, and a corresponding individual, market, and national gain.
In an IPO, there are a number of steps that a company must take before it can be listed.
The first step is the company’s decision to go public. A company that wishes to get low-
cost capital for expansion or divest its interest in the company may offer its shares or
debentures to the public58, who seek diversified investment opportunities, fewer
business risks and a chance to own part of the company. According to the Companies
Act, any reference to the offering of shares or debentures to the public is seen as:
“…including a reference to offering them to any section of the public, whether
selected as members or debenture-holders of the company concerned or as clients of
the person issuing the prospectus…”59
This offer may not be seen as public if it is properly construed as:
“…not being calculated to result, directly or indirectly, in the shares or debentures
becoming available for subscription for purchase by persons other than those receiving
the offer or invitation, or otherwise as being a domestic concern of the persons making
and receiving it…”60
57
Ibid. Section 5 (4) The Minister has discretion in appointing members of the CMA
58
The Companies Act, 1964, s. 40(3)(b)
59
ibid s. 57(1)
60
ibid s. 57(2)
40

41. Along with the benefits of this stage of the IPO, the issuer of shares must also consider
the burdens of registering the company in deciding whether the company has the
financial or managerial capacity to go public. The company then executes formal
resolutions to convert from a private enterprise to a public one, and lodges it in the
companies’ registry.
The CMA, in order to ensure investor protection, regulates the public offer of shares and
sets the qualifications for a public offer. Before a company can go public, it must meet
certain requirements set out by the Uganda Securities Exchange. A two-tier system has
been created to encourage both large and small companies to list on the stock exchange
and ensure broad market participation for both the investor and issuer.
In tier one, the company must have a minimum paid up capital of 500 million shillings
and must offer for sale to the public, shares valued by the company’s auditors at the time
of application at not less than 500 million shillings for equities61. The CMA also
prescribes a listing fee of 0.1 percent of the value of the securities being listed but not
less than five hundred thousand shillings and not more than ten million shillings. Any
additional listing will attract a fee of 0.05 percent, but not more than two hundred and fifty
thousand shillings and not more than five million shillings. The USE also charges an
additional annual listing fee of 0.025 percent of the market capitalisation of the listed
securities. The company must have audited accounts for the past five years.
The second tier requires the company to have a minimum paid up capital of 250 million
shillings and must issue or offer shares to the public whose value as determined by the
61
or 150 million shillings for debt securities.
41

42. auditors at the time of application at 150 million shillings for equities.62 The initial listing
fee is 0.05 percent of the issue value of the shares to be listed subject to a minimum of
250,000 shillings and a maximum of 5,000,000 shillings. An additional annual listing fee
is 0.025 percent of the market capitalisation of the listed securities. The company must
have audited accounts for the past five years.63
The next step is the assembling of the team who will work with the company’s directors
and managers. This team comprises “the sponsoring broker, the underwriter64, the
financial adviser or merchant bank65, the legal counsel66, the reporting accountants and
auditors67, the publicity firm and advertisers68, the independent registrar or transfer
agent69, and special experts depending on the nature of the issuer’s business70”.71
These experts will be charged with making the offer as efficient and transparent as
possible in order to ensure that the companies business is in order and prospective
investor is given enough information before purchasing the securities, which is the
principal consideration in a public offering.
The third step is the performance of the due diligence process. This is a process where
the company ensures that the information it intends to put in the prospectus is not
misleading and the company’s interests are clearly stated and the team member’s
62
and 80 million shillings for debt securities.
63
Nafula Awori: “Demystifying the Decision to go Public: What does it do for the Company”: The Capital
Markets Journal, Volume 3 No. 1. January/ March 1999, page 6.
64
both regulated by the regulatory agency
65
regulated by the Central Bank
66
regulated by the Uganda Law Society
67
regulated by the ICPAU
68
indirectly regulated by the Advertising regulations
69
regulated by the registrar guidelines, which are still being formulated in Uganda.
70
Indirectly regulated by the prospectus regulations.
71
Source: Ms. Candy Wekesa: Legal and Regulatory Issues in Capital Markets: A paper presented at a
seminar entitled “Development and Regulation of Securities and Capital Markets,” May 15-26, 2000 at ILI-
Uganda; Page, 13
42

43. contributions are compiled in accordance with the prospectus regulations. This process
in effect gives the prospective investor constructive notice about the company and the
purchase of shares is an arms length transaction. The investor should therefore have all
the necessary information to limit his risk.
The fourth step is the preparation of a prospectus, also regulated by the prospectus
regulations. The prospectus must cater for the unsophisticated investor in a “plain
English disclosure standard”72 in the cover page, summary, and risk factor parts of the
prospectus. The prospectus is the basis of the adequate disclosure standards in an
IPO, which shall be discussed in detail later on in this chapter.
After the preparation of the prospectus, the publicity firm must inform the public of the
company’s decision to go public through advertising, road shows and meetings with
potential individual and institutional investors in accordance with the advertising
regulations. The offer should be seen by a large number of people to qualify as a public
offer.
The next step is the execution of an underwriting agreement where the lead or
sponsoring broker or a syndicate of brokers undertakes to minimise the issuer’s risk by
either buying all the shares and reselling them to the investors73 or buying any left-over
securities after the offer is closed. In Uganda, the underwriting agreements are
reviewed and regulated by the CMA. At this stage the performance and value of the
company can be gauged and the underwriter and company price the shares of the
company. The pricing of the shares, while determining how much money the company
72
Ibid
73
This is called the firm commitment underwriting
43

44. will make, can have an effect both in the primary, and secondary market and subsequent
performance of the shares must be taken into consideration. This price should be the
main consideration before the purchase of shares by the prospective investors.
After distribution of the prospectus to the public, the “offer period” begins. In this period
prospective investors apply for shares in the company. This period runs until the
company’s receiving institutions stop receiving applications for shares. The opening and
closing dates and times must be clearly stated in the prospectus, per the prospectus
requirement regulations74. The allotment process follows the end of the offer period.
Here, the successful applicants get share certificates and unsuccessful ones get their
money back. The date of announcing the allotment policy must also be stated in the
prospectus.
The last stage of the IPO is the listing stage, where, after the regulatory agency
approves the company’s prospectus, the sponsoring broker applies to the stock
exchange to have the newly issues shares listed.
The main regulatory consideration in the primary market is adequate disclosure and it is
the duty of the regulatory agency to set the standard of disclosure. These standards
play a major role in investor protection and market regulation. It is important to note,
however, that they are not aimed at ensuring that the investment is totally free of normal
market risks, but that the investor is made aware of the risk before he commits his
money.
74
for example, page 1 of the Uganda Clays Limited prospectus gives the offer period as four weeks, from
12:00 PM on Monday 11 October, 1999 to 3:00 PM on Friday 5 November, 1999
44

45. Over and above the duty to prevent loss to the investor, the regulator has the duty of
setting up a compensation fund to reduce the impact of any loss to the investor in the
event of market failure75.
In an equity market, the main vehicle for disclosure is the prospectus, which has been
described as:
”…any prospectus, notice circular, advertisement, or other invitation, offering to the
public for subscription or purchase any shares or debentures of a company and includes
any document which, save to the extent that it offers securities for consideration other
than cash, is otherwise a prospectus.”76
The prospectus is further defined as “a document that seeks “full and adequate
disclosure” by giving all “material information” to assist the prospective investor make an
informed decision… an illustration of the “long arm of the regulator”, which fishes out or
causes the fishing out of all information, positive or negative, about the Issuer in order to
meet the disclosure standards prescribed under the law.”77
The prospectus is the main source of information for the prospective investor and, in
Uganda; this is where we first see the regulatory authority of the CMA over the issuer of
securities. It is mandatory to issue a prospectus in any application for shares in or
debentures of a company78. Considering that information is very crucial in investment
75
This is a legal duty per Sections 6 and 82 of the Capital Markets Authority Statute, 1996
76
Companies Act, S. 2 it should be noted that the Companies Act uses the word “prospectus” in the
definition and this makes the section vague.
77
Ms. Candy Wekesa: “Prospectus: Protection or Puzzle?” The Capital Markets Journal, Vol. 4, No. 3,
July/ September, 2000, Page 26.
78
The Companies Act, 1964, s. 40 (3)
45

46. and is the focus of market regulation79, it is necessary to set clear disclosure standards.
A weak prospectus will mislead investors, make continuous disclosure reporting harder,
and jeopardise the work of the regulatory agency, thereby discrediting the entire market.
The common law principle governing the standard of disclosure in a prospectus was
dealt with in New Brunswick and Canada Rly and Land Co. Ltd v Muggeridge80, where
Kindersley, VC said;
“Those who issue prospectuses…are bound to state everything with strict and
scrupulous accuracy and not only abstain from stating as fact that which is not so, but to
omit no one fact within their knowledge the existence of which might in any degree affect
the nature, or extent, or quality of the privileges and advantages which the prospectus
holds out as inducements to take shares.”
The prospectus must therefore comply with the disclosure standards set in the
schedules of the Companies Act81 and the Capital Markets (Prospectus Requirements)
Regulations, 199682. These provisions give the matters to be stated in the prospectus
before a company can get listed.
The prospectus must have a caution note on the first page of the prospectus stating that
the prospectus has been submitted to the CMA for approval and the Registrar of
Companies for registration. The caution note must also state that the securities on offer
have not been approved or disapproved by the authority and the prospective
shareholder should carefully consider the matters set forth under the caption “risk
79
This was the basis of the Efficient Market Hypothesis (EMH) per SID MITTRA AND CHRIS GASSEN:
in ”Investment Analysis and Portfolio Management “Op.Cit, Page 6-7
80
[1860] 30 Lj Ch 242
81
Sections 32, 40, 41, 379, 380, 382 and parts I, II and III of the Third Schedule
46

47. factors”.83 This is aimed at informing the prospective investor of the business risk
involved.
The prospectus must have the purpose of the issue. The purpose of the issue of shares
in Uganda Clays Limited was to implement the Government’s decision to divest its
holding to the public84, enhance the image and status of the company and foster the
growth of the housing sector and capital markets in Uganda.85
The prospectus should spell out the rights of the different classes of holders of
securities86. These rights extend to “dividends, capital, pre-emptive rights to subscribe
to new issues of shares, redemption (where applicable), voting rights, and the creation
or issue of further shares of equal priority with the shares.” This is important because it
clearly sets out the extent of the shareholder’s rights and may influence a prospective
investor in his decision to buy shares.
The prospectus must have a statement on the legal status and affairs of the issuer. This
includes a brief history of the initial organisation, including the form and name under
which the initial organisation took place. This statement must contain information on the
history, titles, contracts, licences, consents, litigation, and any other information pertinent
to the company that might influence the investor’s decision to buy shares.87
82
See S. 4 and part I and II of the Schedule
83
Matters to be Stated on the First Page of the Prospectus; Part I of the schedule to the Capital Markets
(Prospectus Requirements) Regulations, 1996
84
UCL is listed in class 4 of the Public Enterprise Reform and Divestiture Statute, 1993
85
“Key Information and Background:” Uganda Clays Limited Prospectus (1999). Page 7
86
Per paragraph 2(a) of part II of the schedule to the Prospectus Requirement Regulations and paragraph 17
of part I of the third schedule to the Companies Act, 1964
87
Ibid. Paragraph 2 (c) of Part II of the Schedule
47

48. There should be information relating to executive officers, directors or nominees for the
position of director, giving details of their business experience, whether they have been
involved in a petition of bankruptcy or criminal proceedings that “permanently or
temporarily prohibited him or her from acting as an investment adviser or a director or
employee of a broker or dealer, director or employee of any financial institution or
engaging in any type of business practice or activity. This information may influence
prospective investors who might suffer loss in the even of fraud or mismanagement by
the director or executive.88 The directors’ interests in the company must also be stated
since they are trustees of the investors’ money and conflict of interests may affect the
shareholders. This information extends to the director’s shareholding, any acquisition or
disposal of the issuer’s share capital by the director within a one-year period prior to the
public distribution and any contracts or options to purchase securities of the issuing
company or any holding or subsidiary company.89 There should also be information on
the lead and sponsoring brokers, financial advisors, registrars, auditors, and lawyers,
receiving bankers, underwriters, public relations firms and any other professional
advisors of the issue.
The prospectus must contain audited financial statements for five or three years
depending on whether the issue is in tier one or two.90 This should inform the
prospective investor of the issuer’s capital or debt. The prospectus must give
information on the loan and debt profile of the issuing company and to this effect; there
88
In the English case of Re Darby, ex. p Brougham [1911] 1 KB 95, where two discharged bankrupts,
previously convicted of fraud incorporated a company and did not disclose this to prospective investors; the
“corporate veil” was lifted to make them liable upon the company’s liquidation.
89
Prospectus Requirement Regulations, S.2 (d) (iii) to (vii) and paragraphs 3 and 16 of part I of the third
schedule of the Companies Act.
90
Ibid. See footnote 30
48

49. should be information on the company’s bankers91. The prospectus should also have
information on the dates of and parties to all material contracts not entered into in the
ordinary course of business two years before the issue of the prospectus92. An
accountant’s report must cover the financial statements and include a review of the
unaudited statements where applicable.
There should be information regarding the company’s authorised share capital and
details of land and fixed assets of the issuer. This may include and is not limited to
authorised share capital, amount paid up, location, area or tenure of the factories and
fixed assets, and particulars of primary plant and equipment93. This should be
accompanied by a valuation report with respect to the value of the property. There
should also be a statement regarding the intended and transient use of net proceeds of
the company.94
In line with the caution note and the performance of the due diligence process, the
prospectus must have a section labelled “risk factors” dealing with risks on new
ventures, construction, licensing, regulation, competition, taxation, dependence on a key
personality, taxation, level of indebtedness, dilution and unexpectedness of dividends.
This information acts as a warning to the investors that there are business risks that they
should consider when making their investment decisions.
Finally, in pursuance of the “plain English standard” there should be a summary of the
matters to be stated in the prospectus for clarity and easier use by the prospective
91
Prospectus Requirement Regulations. (b)
92
Ibid. (i)
93
Ibid. (h)
94
Ibid. (k)
49

50. investor. This information gives protection to both the company and the investor. While
it gives the investor all the material information necessary for making an informed
investment decision, it relieves the company of any liability in case of unforeseen
financial loss to the investor95.
In addition to the information in the prospectus the company must furnish the investors
with copies of the memorandum and articles of association, authorising regulations,
agreements with professionals, trustee agreements and a contract with the guarantor in
case of debt securities. The Prospectus Regulations96 further empower the CMA to
seek further information and documentation in a particular case or class of cases that
might be to the investors’ benefit.97
This strict disclosure standard limits market failures, promotes transparency and
credibility of the market thereby making it more favourable to investors.
The rationale for government regulation of the primary market can be clearly seen by
looking at the effects of an IPO on the market participants. The main reason for
floatation of shares by any company is the need to raise capital. Equity markets provide
a cheaper, more abundant alternative to the traditional methods of raising finance
through high-interest loans. In this case, the company sells a portion of its shares to the
public for money, which it will need for expansion. Businesses under state control98 can
be floated in a privatisation exercise, which is aimed at separating Government from
95
Mbumba S. Kapumpa, Supra, footnote 9. The principle of caveat emptor is qualified here and the
investor is deemed to have constructive notice if the issuer acts in good faith.
96
Regulation 5 (1)
97
In the Uganda Clays Limited IPO for instance, the CMA sought a report on the company’s environmental
policy to minimize the negative effects of the clay mining, as well as a geological survey on the life
expectancy of the clay reserves, which are the main raw material of the company.
98
The Government of Uganda has sold its shareholding in both Uganda Clays Limited and British
American Tobacco (Uganda) Limited to the public on the stock exchange.
50

51. business in order to increase public participation and improve the management of the
privatised companies. The floatation of a company may indicate a move away from the
traditional family business operation that is very common in Uganda and this may lead to
better management and growth of these companies.
The primary market has many benefits for the issuer, investor, market, and economy in
general. The benefits of floatation for a company are not limited to capital realisation
and improvement in management. When the company gets listed its shares become
liquid and can be converted to cash quicker than shares in a private company. This
would help the entrepreneur diversify his investment and minimise risk. The liquidity
may also lead to establishment of employee benefit programmes to encourage
employee investment in the company. This would lead to better quality of work, as the
employees would now own a share of the company.
A company that meets the disclosure requirements for getting listed is regarded as
having high standards of corporate governance and this will boost the company image.
The company would further benefit from shareholder support through the shareholders
identifying with and buying the company’s product and even providing extra capital
should the need arise.
In a share offer, the investor diversifies his investment opportunities and utilises his or
her savings better. This may also lower his or her investment risk through an “eggs in
more than one basket”99 approach.
51

52. The offer of new issues to the public may, on the other hand have its disadvantages.
The disclosure requirements are a big source of discord among the entrepreneurs who
find that exposing all the weaknesses of the company might kill the selling element of the
company and ultimately lead to losses. The entrepreneurs further fear that competitors
could use the information to the company’s detriment. This is common in Uganda where
the standards of corporate governance leave a lot to be desired. To add to their
discontent, the high cost of going public has discouraged many entrepreneurs. The
team of professionals required for an IPO is seen as an added cost rather than a factor
in getting capital.
Many entrepreneurs fear the loss of control that might occur as a result of an IPO. The
development of the equity market will be contingent on a change from the traditional
“build-own-operate” family business corporate structures and lack of corporate
governance common in Uganda’s commercial organisation and this might not augur well
with the directors of such companies.
The opportunity to own a part of a company is an incentive to savings mobilization as a
result of the development of the supply side of the securities market. With more equity
and debt securities being traded, the stock market will get depth and width, which lead to
lower investment risks, greater competition, and better products on the market.
Ultimately, the developed market through increased investment and public participation
in the market will boost the national economy. Strong business units will evolve and
there will be lower costs of capital as financial institutions compete with capital markets.
Ultimately, higher savings and returns on investment as a result of market development
99
Ms. Candy Wekesa: Legal and Regulatory Issues in Capital Markets: A paper presented at a seminar
entitled “Development and Regulation of Securities and Capital Markets,” May 15-26, 2000 at ILI-Uganda;
52

53. will lead to wealth creation and sustainable growth and economic development. These
benefits are, however dependent on investor confidence, which determines the levels of
investment and growth of the market. Protection of the investor is therefore a necessary
requirement for the development of capital markets.
In furtherance of their common goal of investor protection the CMA Statute100 and
Companies Act101 contain both civil and criminal penalty provisions against unlawful
practices in an IPO. These provisions set out the liabilities of the issuers with regard to
the IPO and are necessary to enforce the rights of the subscribers, who are usually at a
disadvantage compared to the issuers of securities.
The CMA Statute prescribes civil and criminal sanctions in the form of fines,
imprisonment and compensation for contravention of the rules set out in part IX of the
CMA Statute. These criminal sanctions are also provided for non-compliance with the
disclosure requirements set out Section 40 and the third schedule to the Companies Act.
This non-disclosure shall lie against a director if he fails to show that the error was not
deliberate or he was unaware of it. This is based on the principle that the directors act
as trustees to the shareholders and must act in good faith. In allegations of fraud or
negligence against directors or promoters of a company the onus of proof lies on the
subscriber.
Page 7
100
Part IX of the CMA Statute lists various market offences and section 90 lists the criminal and civil
liabilities for the offences named in sections 83 to 89 of the statute.
101
the Companies Act 1964, Sections 45 and 46
53

54. Individuals can be fined up to ten million shillings, imprisonment up to five years or
both.102 Companies, on the other hand can be fined up to twelve million shillings. Over
and above the remedy of fines or imprisonment is the requirement that compensation be
paid to the aggrieved party by a person convicted of an offence under part IX of the
statute.103 The rationale for this is the recognition of the duty of care held by the issuers
of securities104 and fraudulent or negligent breach of this duty will require the party in the
wrong to make good the losses sustained by the person claiming the compensation.105
An investor’s rights with regard to the prospectus are absolute and cannot be waived.
Section 40 of the Companies Act makes the issue of a prospectus mandatory and
Section 40(2) makes it clear that contractual waiver cannot avoid prospectus violations.
This provision operates to prevent instances where, owing to the superior bargaining
power of the issuer, the investor may be induced to waive his rights to his detriment.
Section 41 of the Companies Act preserves any common law remedies that the investor
may seek. These remedies may include damages for misrepresentation, rescission and
actions for negligence.
The common-law remedy of damages for misrepresentation in a prospectus is based on
the belief that “those who advertise a prospectus know that it will be relied on
indiscriminately by investors who apply on allotment and those who buy on the
102
Ibid. Section 90(1)(a)
103
Ibid. Section 90 (2)
104
This is based on the principle set out by Kindersley, VC in New Brunswick and Canada Rly and Land
Co. Ltd v Muggeridge
105
the Companies Act 1964. Section 90(3)
54

55. market.”106 As seen in the case of Peek v. Gurney107 if a false statement was made in
the prospectus and it was the intention of the issuers to have it acted upon an investor
that acts upon such misrepresentation to his detriment is entitled to damages108. This
was extended to cover the subscriber’s loss as a result of negligent misstatements in the
prospectus.109 However, as was seen in Derry v. Peek110, if the directors make the
misrepresentation in the honest belief that it is true they will not be liable for
misrepresentation. This Companies Act provides a defence for an honest mistake of
fact that may make what may be strictly construed as a misrepresentation
exculpatory.111 This defence does not extend to mistakes of law.
In the alternative, if the statement in the prospectus is untrue and misleading, but not
fraudulent, the aggrieved subscriber may seek to rescind the contract and have the
register of members rectified.112 Proof that the prospectus contained a
misrepresentation in respect of a material matter intended to be acted upon and the
company is liable would entitle the aggrieved subscriber to repayment of the initial
investment he made in the company.
The common law provision for damages for misrepresentation is concretised in section
85 of the CMA Statute that prohibits making false or misleading statements to induce a
person to buy or sell securities. Liability with regard to these statements lies with the
issuer if they are made fraudulently or recklessly to the investor’s detriment.
106
D. J. Bakibinga: Company Law in Uganda. Professional Books Publishers & Consultants Ltd- Kampala
(1997). Page101
107
(1873)L.R. 6 H.L.377 This remedy is restricted to the actual allottee of the shares and not the subsequent
purchasers of the shares.
108
This is further illustrated in section 87 of the Capital Markets Authority Statute, 1996
109
this remedy is given in Section 45 of the Companies Act, 1964
110
[1889] 14 App Cas 337
111
Section 40(4)(b)
55

56. The Companies Act prescribes a number of monetary fines for irregular allotment under
Section 51 and reporting violations under Section 54. Section 45 entitles a subscriber
who has suffered loss as a result of misrepresentation to a claim of compensation
against the director or person named as director in the prospectus. This liability may
extend to experts under Section 42 of the act.
The statute prohibits false trading and market rigging. This offence takes the form of
creating a false or misleading appearance of active trading with respect to market or
price for the securities.113 It may also involve purchase or sale of securities with no
change of beneficiary mainly leading to fluctuation of the price of the securities114. If it is
shown that the issuer wilfully created a false or misleading appearance of trading in
securities trading he commits an offence. The statute further prohibits transactions that
are tantamount to share price manipulation with intent “to induce other persons to sell,
purchase, or subscribe for securities of the body corporate or related body corporate.”115
The CMAs mission statement to “promote and facilitate the development of an orderly,
fair and efficient capital market in Uganda116” points to the state’s goal of increasing
investor confidence. This increased confidence will ultimately lead to increased
investment, market growth and economic development. Investor protection is perhaps
the main consideration from which all the other goals stem and it is in the state’s best
interests to safeguard the investors’ rights, which would otherwise be violated by
unscrupulous issuers of securities.
112
Section 118 of the Companies Act.
113
Capital Markets Authority Statute, 1996, Section 83(1)
114
Ibid. Section 83 (2)
115
Ibid. Section 84
56

57. Chapter Three:
The CMA Post-IPO: Substantive and Regulatory Aspects of the
Secondary Market117:
This chapter seeks to study the regulatory role the CMA plays in the secondary market.
This role is in line with the obligation given to it by the CMA Statute to create, maintain
and regulate the market and make it as self-regulatory as possible118. This is the source
of the CMA’s mission statement, which is:
“…To promote and facilitate the development of an orderly, fair and efficient capital
market in Uganda”119.
This CMA has the task of “removing impediments to, and the creation of incentives for
longer term investment in productive enterprise”120 and it can achieve this by increasing
investor confidence through “protection of investor interests.”121 The aspects of
regulation involve licensing and supervising market participants, imposing sanctions on
participants who violate the securities regulations, and as a last resort, compensating
aggrieved investors for their loss122.
116
CMA Uganda: Annual Report & Accounts 1998/ 1999. Page 2
117
We see in Candy Wekesa’s article entitled Legal and Regulatory Issues in Capital Markets. Op.Cit,
Page 15 that the secondary market is synonymous with the Stock Exchange
118
Capital Markets Authority Statute, S.6(1)(b)
119
Capital Markets Authority Annual Report and Accounts, 1998/ 1999, page 2.
120
Capital Markets Authority Statute, S.6(1)(a)
121
Ibid, S.6(1)(c)
122
Ibid, Sections 82(1) and 6(1)(d) deals with the investor compensation fund
57

58. As we discussed in the previous chapters, securities can be categorised into equity and
debt.123 Debt securities are a good source of short-term capital to the entrepreneur.
Here, a lender gives money to the company “on the promise that both the principal and
interest will be paid”124 regardless of whether the company makes profits or not. The
lender’s claim is to repayment of the debt and therefore he or she has a lower level of
risk than the borrower. These securities are more common in Uganda where the capital
markets regime is still in its infancy and reliance on banks and other financial institutions
is still high. This is further confounded by the predominance of small family businesses
that cannot meet the listing requirements in the IPO.
Equities are a good source of long term, low cost capital to the entrepreneurs. The
primary forms of equity are ordinary and preferred shares. Unlike debt securities, when
an investor buys equity he is actually buying a share in the ownership of the company
and owns a proportion of the company’s assets. However, he has neither a claim to
repayment of the principal, nor payment from profits. The risk levels are therefore high
for the shareholders who only get paid their dividends at the discretion of the directors.
This is the case particularly with the ordinary shareholders who have the lowest priority
claims. Preferred shares carry a fixed dividend rate and are entitled to payment of
dividends before the ordinary shareholders. The equity holder mainly makes a profit
from secondary trading on the stock market.125
The secondary market refers to subsequent trading in already issued shares. This
trading occurs at the stock exchange and is regulated by the self-regulatory organisation
123
See the definition of securities in Chapter One, page 20
124
Stuart R. Cohn/ Fred Zake: Capital Market Development in Uganda, Op.Cit, Page 22
125
For example, an investor who bought shares in BAT at one thousand shillings per share during its IPO
can now sell them at one thousand two hundred shillings per share, thereby making a twenty percent profit.
58

59. in line with the “cocktail approach” to equity market regulation adopted by the
Government of Uganda126. Uganda’s secondary market is in the Uganda Securities
Exchange127, which was established by the CMA128 to act as the SRO in the Regulatory
Pyramid.129 Companies have their IPO of their shares through the CMA as the primary
market but all subsequent transactions are carried out in the secondary market.
The stock market is not unlike an ordinary market and the commodities traded are
already issued shares. Trading is conducted on the USE trading floor under a
continuous open outcry trading system. The trading floor is, however, restricted to
broker-dealer members of the stock exchange and their representatives. The aim of this
restriction is to ensure order in the stock market with the broker-dealers130 acting as
agents for the investors.
The secondary market acts as an exit or entry mechanism for the shareholders who wish
to dispose of their shares after the IPO, or investors who wish to purchase already
issued shares. The entry and exit mechanism simplifies investment and makes the
market liquid. The secondary market can also act as an indicator of the company’s and
the country’s general economic performance. Furthermore, the market provides a price
discovery mechanism when offers and bids match on the trading board.
The SRO, under the supervision of the Regulatory Authority oversees the operation of
the secondary market. The secondary market is for the most part self-regulatory, and
126
See the discussion on the “Regulatory Pyramid” in Candy Wekesa’s article entitled Legal and
Regulatory Issues in Capital Markets. Op.Cit, Page 1
127
Incorporated as a Company limited by guarantee in May, 1997 by the CMA.
128
Under Part III of the Capital Markets Authority Statute
129
See appendix A and the discussion on the “Regulatory Pyramid” in Candy Wekesa’s article entitled
Legal and Regulatory Issues in Capital Markets. Op.Cit, Page 1
59

60. governed by the forces of demand and supply. Any appreciation in the value of the
shares held by the equity holder leads to a profit when the shares are disposed of in
secondary market transactions. These transactions usually do not change the
company’s capitalisation implying that the benefit or loss from an appreciation or
depreciation of the share value of a company’s stock will fall squarely on the
shareholder’s shoulders. This is contingent, however, on the need to protect the
investor from market imperfections that may arise in the secondary market131.
Investor protection is the major regulatory consideration in the secondary market, and
the capital markets in general. The focus of regulation in the secondary market is on
protecting investors in the secondary market from losses from an unfair disadvantage
that may arise in the market. This may be done by preventing a conflict of interest on
the part of licensees in the stock market from adversely affecting the investor, as well as
ensuring that the participants in the secondary markets conform to the continuous
disclosure requirements. This protection is tied down to information in line with the
“efficient market hypothesis”132. The market must ensure that price sensitive information
is brought out into the open and the market operates as transparently as possible to
enable the investor make an informed investment decision.
The CMA Statute empowers the CMA to make subsidiary legislation to achieve its
objectives.133
130
See the definition of brokers, dealers and broker-dealer firms in Chapter One, Page 22
131
See the functions of the CMA in The Capital Markets Authority Statute, 1996, S.6(1)(c)
132
Sid Mittra and Chris Gassen: ”Investment Analysis and Portfolio Management “ Op. Cit. See also,
Chapter One, page 7
133
The Capital Markets Authority Statute, 1996, S. 102
60